I respectfully suggest that the time has come for the New York Bar to consider disciplinary proceedings against Rudy Giuliani. He has constantly and intentionally misrepresented both the facts and the law regarding the Mueller investigation. He has disparaged and falsely accused the FBI of misconduct and maligned its dedicated agents and lawyers. No matter one’s views of the investigation, those toiling in it deserve better. All of this conduct by Mr. Giuliani would be despicable enough if it came from any lawyer, but it is more reprehensible because it emanates from a former U.S. Attorney and current counsel to the President of the United States. I have been a member of the bar for 65 years, practiced as a lawyer, served on the United States District Court and the United States Court of Appeals, and in my entire professional life, I have never witnessed such an unseemly and unprofessional performance (because that is what it is) from someone who knows better and was previously held in high esteem. In addition to his own public statements, he has remained silent in the face of his client’s own disparagement of the law enforcement community and all those who devote their lives to maintaining its integrity and our safety.
The president praises a convicted felon for not cooperating with law enforcement and condemns one who has cooperated, and Mr. Giuliani remains silent. The president characterizes John Dean who was responsible for the disclosure of Richard Nixon’s criminal conduct as a “rat,” and Mr. Giuliani remains silent. The president has now added his own, longtime lawyer, Michael Cohen, to his “rat” list. The president suggests that cooperating with law enforcement might well be deemed illegal, and Mr. Giuliani remains silent.
What taint will all this create on future cooperating witnesses in the eyes of jurors? Other statements made by the president that demand correction or resignation as counsel by Mr. Giuliani are too numerous to list. Furthermore, he himself has blatantly and improperly dangled a potential pardon at Paul Manafort in an obvious attempt to encourage him not to cooperate with the authorities.
Most recently he has suggested that somehow the credibility of a woman asserting charges against the president should be measured by the amount of hush money she accepted to silence her. This is more than just politics as usual. He and unfortunately his client have eroded the public’s confidence in our system of justice and respect for the rule of law. In the present atmosphere of base and divisive rhetoric, members of the bar should raise the level of the discourse, not lower it.
Encouragement of zealous representation of a client never contemplated such disgraceful conduct. The damage done may be beyond repair. Mr. Giuliani has rendered our noble profession ignoble and condemnation by the bar is justified; indeed, it is mandated. Mr. Giuliani has violated each of the ethical rules set forth below:
New York Lawyer’s Code of Professional Responsibility EC 1-5 A lawyer should be temperate and dignified, and should refrain from all morally reprehensible conduct.****. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude. EC 1-7 A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, ***and other persons involved in the legal process. DR 1-102 [1200.3] Misconduct. A. A lawyer shall not:4. Engage in conduct involving misrepresentation. 5. Engage in conduct that is prejudicial to the administration of justice.
DR 7-102 [1200.33] Representing a Client Within the Bounds of the Law. A. In the representation of a client, a lawyer shall not:
5. Knowingly make a false statement of law or fact. DR 7-107 [1200.38] Trial Publicity. A. A lawyer participating in or associated with a criminal matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter.
H. Lee Sarokin is a retired judge of the U.S. Court of Appeals for the Third Circuit.